IN THE CASE OF:	  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130009336 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change in the reason and authority for his discharge and an upgrade of the characterization of his service. 

2.  He states he was discharged for being unable to adapt to military life.  He tried to fight it.  He was bipolar, which he did not know until he was in his late 20s.  He went through many jobs when he was younger.  He is now receiving Social Security Disability Insurance for bipolar disorder.  He asks that this be taken into consideration.

3.  He provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 28 June 1977, the applicant enlisted in the Regular Army at age 17 with parental consent.  He completed initial entry training, and he was awarded military occupational specialty 94B (Food Service Specialist).

3.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 20 July 1977 for being disrespectful in language toward a noncommissioned officer (NCO)
* 5 October 1977 for leaving his appointed place of duty without authority and failing to go at the time prescribed to his appointed place of duty
* 21 October 1977 for striking an NCO, treating an NCO with contempt, and disobeying a lawful order from an NCO
* 25 January 1978 for failing to go at the time prescribed to his appointed place of duty
* 21 February 1978 for disobeying a lawful order from an NCO (his appeal of the punishment was denied)
* 20 March 1978 for being disrespectful in language toward an NCO

4.  On 5 April 1979, he underwent a mental status evaluation.  The examining physician found no significant mental illness and noted the applicant was medically fit.

5.  The charge sheet is unavailable; however, on 11 April 1979 he consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  

6.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	a.  He stated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  (The available records do not show what charges had been preferred against him.)

	b.  He acknowledged:

* he was guilty of the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions 
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	c.  He indicated he would submit a statement in his own behalf.

7.  In the statement he submitted with his request for discharge, he indicated, in part:

* he joined the Army at age 17
* his adoptive parents were both unable to work
* he quit school in the 10th grade to enter the Army to earn money to send home so his parents could have money to live
* at his first duty station, he had some problems with some of the NCOs
* he did not know why he had problems
* he thought it would be better for him and the Army to be separated because he could not cope with the Army

8.  His chain of command recommended approval of his request to be discharged for the good of the service and recommended he be discharged under other than honorable conditions.

9.  On 15 May 1979, the separation authority approved his request to be discharged under the provisions of Army Regulation 635-200, chapter 10.  The separation authority directed that he receive an Under Other than Honorable Conditions Discharge Certificate.

10.  On 30 May 1979, he was discharged accordingly after completing 1 year, 11 months, and 3 days of total active service.  His DD Form 214 shows his service was characterized as under conditions other than honorable.

11.  His record is void of documentation showing he was diagnosed with bipolar disorder or any other mental illness during his military service.
12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for a change in the reason and authority for his discharge or an upgrade of the characterization of his service.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record does not show what charges were preferred against him; however, the record does show he admitted he was guilty of an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.

3.  He indicates he believes that his bipolar disorder should be considered as a mitigating factor in his case.  There is no documentary evidence in his record indicating he had a mental illness that might have served as a basis for discharging him under some other regulatory provision or as a mitigating circumstance in determining the characterization of his service.  A mental status evaluation conducted prior to him submitting his request for discharge found no significant mental illness and noted that he was medically fit.  

4.  He received NJP on several occasions and he admitted he was guilty of an offense for which he could have been tried by court-martial and punished with a punitive discharge.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  In the absence of documentary evidence showing an error or injustice, there is no basis for changing the reason and authority for his discharge or the characterization of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130009336





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ABCMR Record of Proceedings (cont)                                         AR20130009336



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